The Justice Department’s new tactic: Leapfrog judicial process and go straight to the Supreme Court

A police officer guards the front of the Supreme Court on Thursday. (Erik S Lesser/EPA-EFE/REX/Shutterstock)

ByJoshua Matz

November 12, 2018

Joshua Matz is a constitutional lawyer and publisher of the Take Care legal blog.

The Justice Department has implemented a new strategy for defending President Trump’s most controversial policies: Declare an urgent threat to the executive branch, bypass ordinary judicial procedure and rush straight to the Supreme Court. Over the past few weeks, it has made this move in cases involving climate change, immigration, the 2020 Census and Trump’s ban on military service by transgender people. The department’s aggressive tactics rest on a rather overt calculation that the court’s right-leaning majority will nearly always side with the administration — and that five justices will repeatedly bend the rules to kill cases against Trump.

It seems unlikely that a majority of the Supreme Court is enthusiastic about this development. Chief Justice John G. Roberts Jr. is deeply committed to preserving confidence in the court as a branch of government that speaks “for the Constitution,” not “one party.” That concern also appears in statements by many of his colleagues. As Justice Elena Kagan has observed, “It’s an incredibly important thing for the court to guard — this reputation of being fair, of being impartial, of being neutral, and of not being some extension of the terribly polarized political process and environment that we live in.”

By treating the Supreme Court as a willing ally rather than a neutral arbiter, Trump’s lawyers are encouraging a dangerously cynical view of an institution whose public legitimacy is its very lifeblood. Worse, by filing a slew of irregular petitions that require immediate action, the department is forcing the court to navigate a political minefield.

Consider a few of the department’s most recent filings, which reveal a startling disregard for norms of judicial process.

In mid-October, Solicitor General Noel Francisco asked the Supreme Court to block discovery and trial proceedings in a case challenging the federal government’s creation of a “dangerous climate system.” He filed this request even though the justices had denied a similar motion just a few months earlier. Moreover, he jumped straight from the district court to the Supreme Court, disregarding an opportunity for review in the Court of Appeals. It was no surprise that the Supreme Court rejected his request, signaling that it would not issue an emergency writ outside the usual hierarchy for appellate review.

Twice in October, Francisco asked the Supreme Court to interfere in litigation over Commerce Secretary Wilbur Ross’s widely criticized decision to add a citizenship question to the 2020 Census. First, the solicitor general sought to block nearly all discovery of key facts bearing on Ross’s decision — including depositions of Ross and acting assistant attorney general John Gore. The court denied most of that request, though it halted Ross’s deposition.

Seven days later, Francisco returned and asked the Supreme Court to prohibit a trial until the justices could rule on the government’s arguments. This would have egregiously distorted the norm that parties must try their cases to final judgment before seeking review in the Court of Appeals and then the Supreme Court. In practice, siding with the government might also have delayed the trial until long after the 2020 Census could be fixed. For good reason, the court denied this petition in its entirety.

Last week, Francisco filed yet another extraordinary petition, this time taking aim at opinions that block Trump’s rescission of the Deferred Action for Childhood Removals program. Three district courts have enjoined Trump’s DACA policy, and their rulings are undergoing review. But rather than respect procedures that allow full ventilation of complex issues, Francisco requested an extremely unusual maneuver known as “certiorari before judgment.” This was a strange move, given that the Supreme Court denied a nearly identical request in February. In any event, an appellate court has since upheld the injunction against Trump’s rescission of DACA; that ruling can now be appealed to the Supreme Court.

Finally, the department filed a letter Wednesday declaring its intent to again seek the extraordinary step of “certiorari before judgment” — this time, in cases challenging the exclusion of transgender people from the military. (I represent LGBTQ rights groups that submitted an amicus brief in one such case.) The letter included an unsubtle message: Rule quickly or we’re going over your heads.

Government lawyers rarely issue veiled threats to courts. But under Trump, the Justice Department has shown little respect to judges who rule against it — or who don’t rule for it quickly enough. Trump’s lawyers fail to understand that the government is not entitled to play leapfrog whenever it loses in federal court.

If the department’s battery of “emergency” petitions were granted, they would immediately overload the Supreme Court docket with politically fraught challenges to Trump administration policies. They would also shatter any semblance of normality and regular order. That would be a terrible outcome for the court — and for the nation.